In this case, a panel of the Second Circuit has applied the "farce and mockery" test in rejecting petitioner's claim that
[459
U.S. 926
, 927]
he was denied effective assistance of counsel. Petitioner's contention of ineffective assistance is not frivolous. His trial attorney failed to offer exculpatory testimony given at a suppression hearing and failed to call witnesses to testify at trial who exonerated petitioner at the hearing. Perhaps the performance of petitioner's counsel satisfied the more exacting standard that the Court of Appeals has rejected, but there was no holding to that effect, and that question should be answered by the Court of Appeals after the level of minimum competence required by the Sixth Amendment has been determined by this Court. Unfortunately, despite conflicts among the Courts of Appeals, we have long refused to consider whether the "farce and mockery" test satisfies the constitutional imperative of effective assistance of counsel, or to otherwise clearly articulate what level of effectiveness is required by the Constitution. A more fundamental question to the administration of criminal justice in the state and federal courts can scarcely be envisioned. I have previously argued that the Court should review this issue, Maryland v. Marzullo,
435
U.S. 1011
(1978) (WHITE, J., joined by REHNQUIST, J., dissenting from the denial of certiorari), and I remain of that view.